Dec 192009
 December 19, 2009  Posted by  Business, Featured News, Surveillance, Workplace

Every so often, I try to spend a bit of time on SSRN to see what new articles are available that might be of interest. Here are seven recently posted abstracts, below. For most of them, the full-text version is also available as a free download:

Finkin, Matthew W., On Restating the Common Law of Employee Privacy (October 7, 2009).

The American Law Institute (ALI) has circulated the initial draft of the chapter of its proposed Restatement of Employment Law dealing with employee privacy. This essay, which will be the Preface to the third edition of the author’s Privacy In Employment Law now in press (Bureau of National Affairs), takes up the draft’s stated presupposition, its methodology, and the resulting restated principles. It finds fundamental flaws in each as measured against extant law. In a nutshell, the draft is an effort at invention, not restatement. The dilemma it poses for the ALI is that parts of what the ALI has already adopted as a Restatement of Employment Law suffer from analogous infirmities. Thus the approach taken in this draft presents a challenge to what the restatement project is about.

Rubinstein, Ira, Privacy, Self-Regulation and Statutory Safe Harbors (November 6, 2009).

According to its many critics, privacy self-regulation is a failure. It suffers from weak or incomplete realization of Fair Information Practice Principles, inadequate incentives to ensure wide scale industry participation, ineffective compliance and enforcement mechanisms, and an overall lack of transparency. Rather than attacking or defending self-regulation, this Article explores various models of self-regulation, which differ as to the role of government in setting requirements, approving guidelines, and imposing sanctions for non-compliance. Based on three case studies of a “purely” voluntary privacy code aimed at online behavioral advertising practices, a “partially mandated” safe harbor agreement that ensures data flows between Europe and the US, and a “fully mandated” or statutory safe harbor designed to protect children’s privacy, this Article demonstrates that statutory safe harbor programs are more effective than other forms of privacy self-regulation. Next it conceptualizes new models for privacy safe harbors based on insights derived from “second generation” environmental policy instruments and concludes by offering specific recommendations to Congress on how best to design new safe harbor programs as an essential component of omnibus consumer privacy legislation.

Goold, Benjamin J., Surveillance and the Political Value of Privacy (September 01, 2009). Amsterdam Law Forum, Vol. 1, No. 4, 2009.

The steady expansion in the use of surveillance technologies by the state and private sector represents a substantial threat to the privacy of ordinary individuals. Yet despite the best efforts of civil libertarians, many members of the public still struggle to understand why privacy is valuable and deserves to be protected as a basic right. In part, this is a result of the inherent complexity of the idea of privacy, but it is also due a tendency on the part of privacy advocates to focus on the individual – as opposed to the social and political dimensions – of privacy. In order to ensure that there is a greater level of public engagement with matters of privacy and sufficient awareness of the dangers of intrusive surveillance, more must be done to ensure that the general public appreciates that privacy is not just essential for individual freedom, but also for the health of society as a whole.

Keele, Benjamin J., Privacy by Deletion: The Need for a Global Data Deletion Principle (November 17, 2009). Indiana Journal of Global Legal Studies, Vol. 16, No. 1, pp. 363-384.

With global personal information flows increasing, efforts have been made to develop principles to standardize data protection regulations. However, no set of principles has yet achieved universal adoption. This note proposes a principle mandating that personal data be securely destroyed when it is no longer necessary for the purpose for which it was collected. Including a data deletion principle in future data protection standards will increase respect for individual autonomy and decrease the risk of abuse of personal data. Though data deletion is already practiced by many data controllers, including it in legal data protection mandates will further the goal of establishing an effective global data protection regime.

Romanosky, Sasha and Acquisti, Alessandro, Privacy Costs and Personal Data Protection: Economic and Legal Perspectives (December 12, 2009). Berkeley Technology Law Journal, Forthcoming.

We analyze personal data protection laws in the United States through the lenses of the economic theories of ex ante safety regulation, ex post liability and information disclosure. Specifically, we consider and contrast how legal and economic theories interpret privacy costs and the remedies to those costs. First, we introduce the general economic theories of ex ante regulation, ex post liability and information disclosure. Then, we present their causal relationships and show how they attempt to reduce possible privacy harms caused by a firm’s activity. We then scrutinize their impact by contrasting legal and economic doctrines. Finally, we provide deeper economic analysis of the three legal mechanisms and highlight conditions under which they may become socially inefficient.

Gelman, Lauren Amy, Privacy, Free Speech, and ‘Blurry-Edged’ Social Networks (November 1, 2009). Boston College Law Review, Vol. 50, No. 5, 2009.

Much of Internet-related scholarship over the past ten years has focused on the enormous benefits that come from eliminating intermediaries and allowing user generated one-to-many (one person to many people) communications. Many commentators have noted the tension created between the positive benefits for free speech and the negative effects on user privacy. This tension has been exacerbated by technologies that permit users to create social networks with “blurry edges” – places where they post information generally intended for a small network of friends and family, but which is left available to the whole world to access. The thought is that someone the user cannot identify a priori might find the information interesting or useful. These technological advances have created enormous benefits as people connect to each other and build communities online. The technology that enables these communities, however, also creates an illusion of privacy and control that the law fails to recognize. This Article discusses the technological, social, and legal regimes that have created this framework, and proposes a technical solution to permit users to maintain networks with blurry edges while still appropriately balancing speech and privacy concerns.

Gidron , Dr. Tamar Gidron, Publication of Private Information: An Examination of the Right to Privacy from a Comparative Perspective (June 19, 2009).

How much did the chairman of an Israeli political party – with a social-democratic platform – pay for his apartment? Who were the guests of the former prime minister of Israel at his son’s Bar Mitzvah and what was the cost of this celebration? Was pumpkin carving the favorite hobby of Barack Obama as a child growing up in Hawaii? What was Hillary Clinton’s favorite type of sandwich as a law student? Is it permissible to “out” a person as a homosexual against his wishes? And just how “private” is our privacy when we are walking down the street and some aspect of our appearance catches the eye of a passing photographer?

In general, how does a modern society cope with the need to protect the right to privacy when an individual wishes to prevent the public disclosure of personal information, and within what boundaries is the media – motivated by economic, commercial, and social interests – protected when, on the one hand, it feeds society morsels of trivia, but, on the other hand, also provides information of general, social importance? Is there a difference between the protection of privacy and the protection of reputation, particularly when the boundaries of these two rights overlap? How do courts deal with the need to apply the social, moral, and economic theories underlying these fundamental rights and freedoms – on the one hand, the right to privacy and the right to reputation, and, on the other hand, freedom of expression and the right to information – none of which, as we know, is absolute?

The above examples, as well as those discussed below, illustrate the need to strike a balance between two, and sometimes three, competing interests. On the one hand, the right of an individual unwillingly exposed to the public eye – often in disgrace – to maintain his privacy and sometimes also his reputation, and, on the other hand, the complex right – anchored both in the collective, public interest as well as the personal, private interest of each member of society – to the free and unrestrained flow of information

Five random examples taken from recent case law best illustrate the moral and ideological dilemmas raised by the subject of this article: (1) a university professor publicly advises his colleagues that the academic level of a candidate for doctoral studies at the institution where he teaches is sub-standard and that the student should not be accepted for advanced studies;9 (2) a young man wearing an Israel Defense Forces (IDF) uniform is photographed at the center of a gay pride parade marching through the streets of Israel’s capital and the photo is published two years later in an article unrelated to the parade, without his consent; (3) the promo for a television program dealing with the phenomenon of obesity, dieting, and the health risks of being overweight (“On the Scale”) makes unauthorized use of the image of an overweight woman filmed in the public domain; (4) a politician’s biography reveals the names of HIV carriers; (5) the medical history of a cabinet member holding the health portfolio, containing details of her drinking habits and associated medical problems, is disclosed in the press.

It is this struggle between the desire and need to publish, on the one hand, and the fear of causing injury to a person’s emotional state, reputation, and dignity, on the other, that confronts a modern society in its attempt to provide legal protection for the right to privacy and the right to reputation. This is made particularly difficult by the fact that modern society is hungry for knowledge, news, the exposure of “confidential,” even gossipy, details, and the unceasing flow of information – whereas the actual importance of such information is usually disproportionate to the interest that it arouses among the consumer public.

Every legal system chooses to protect privacy, in all of its various aspects and nuances, according to the degree of importance ascribed to this right in comparison to other, sometimes competing, interests. An examination of the similarities and variations between different legal systems with respect to the legal tools and rules regulating protection of the privacy right could teach us much about the nature, content, source, and importance of the right itself. Such an examination can also provide insights about the protection granted by each legal system to the cluster of personality rights, which – alongside the right to privacy – also includes the right to reputation, the right to publicity, and the right to dignity and autonomy. Finally, it can shed light on the relation between the protection granted to the privacy right by constitutional law and that granted by private law.

In the present article, I will examine only one aspect of the right to privacy, which, in contrast to most other fundamental rights, is multi-faceted and may thus be infringed in diverse ways. I have chosen to focus solely on the manner and extent of protection granted to an individual who wishes to prevent the publication of personal information. This article will not deal with invasion of privacy through methods such as wiretapping, surveillance, computer hacking, and so forth, when such acts do not lead to a public disclosure of the information obtained. The aim of this article is to examine prevailing trends in case law that deals with safeguards against the publication of private information and the direction that this case law may take in the future.

The evolution of this body of case law will be examined through an analysis of several important, recent judgments addressing protection of the privacy right, along with a comparative treatment of the right to reputation, when both these rights are confronted by the competing interests of freedom of expression, in general, and freedom of the press, in particular. An examination of the legal systems compared below highlights their differences in terms of the cultural background of each society, the historical development of the right to privacy within the societal context, and the manner in which the prevailing law incorporates, alters, and balances conflicting factors and opposing viewpoints through the use of flexible legal tools. This is usually accomplished with some impressive rhetorical acrobatics, but, unfortunately, it often lacks an adequate explanation for the choice between competing values. This comparison will also serve as a basis for examining the development of each of these legal systems, different from one another in affiliation and origin – common law versus mixed systems – as well as in the manner in which they have adopted human rights within the framework of private law, whether by force of an international convention or a constitution and whether by force of a basic law or specific tort legislation

The current state of English law will be examined mainly through the prism of the judgment in Mosley v. News Group Newspapers Ltd. Apart from the journalistic lessons that may be drawn from the treatment of its professional, editorial aspects, and due to its scandalous circumstances, this case offered the London Queen’s Bench a golden opportunity to review the precedential basis for privacy protection in England while combining the common law with the constitutional protection derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Mosley will also be compared here to the noteworthy Jameel defamation case.19 In the latter case, following a series of judgments reflecting genuine indecision as to the proper balance between the individual’s right to reputation and the press’s right to publish stories it believes to be in the public interest, the House of Lords was required to reformulate the complicated tests for striking a balance between these competing interests. Jameel indicates the adoption of a different point of balance from that reflected by Mosley, where the cause of action was based on an invasion of privacy tort.

An examination of the legal situation in South Africa could enrich the discussion with an original and novel perspective. This is a truly mixed legal system, reflecting various origins and different elements of tort law, in general, and of the right to privacy, in particular. Therefore, it could serve as an interesting basis for comparison. The prevailing approach of South African case law regarding the protection of privacy will be presented through two of the most important South African judgments of recent years. In these cases, the South African courts were required to decide on the legitimacy of published information that was particularly revealing. In the first case, the plaintiffs were identified – without their consent – as HIV carriers. The second case dealt with the right of the minister of health to prevent the press from publishing reports of her drinking habits, in general, and her hospitalization for liver disease, in particular.

This survey will also entail a comparative treatment of new South African case law regarding the proper balance between application of the law of defamation, on the one hand, and freedom of expression and the press, on the other, particularly because the South African Constitutional Court itself has often been called upon to address this conflict.

The comparative survey will be concluded with a review of recent Israeli case law. Each year, Israeli courts deal with more and more cases involving both defamation and privacy issues. These cases require a value-based cultural and social, as well as a complex economic, resolution. Therefore, the Israeli perspective offers quite an interesting source for the purpose of comparison.

The picture emerging from this comparative study indicates an expanded protection of the privacy right – which are not always consistent with prevailing trends in case law dealing with the protection of reputation – at the expense of the “rights” of the media. This picture is identical in all three legal systems examined here: English law, South African law, and Israeli law. However, despite the identical cultural-legal process of these three societies, which leads to an identical legal outcome, there are still considerable differences between the rhetoric employed by each legal system, the force of the value-based arguments raised, and the legal analysis of the relevant issues.

There are many more articles available on SSRN.

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